Ambivalence in State Capital Punishment Policy: An Empirical Sounding

Introduction

The unprecedented circumstances surrounding the current administration of the death penalty in the United States have resulted in an ever-increasing number of prisoners sentenced to death. As of April 1990, 2327 persons were held by the states under active sentences of death, yet only eleven persons were executed in 1988 and only sixteen were executed in 1989. The United States thus had a stock of death row inmates equivalent to about 200 years of executions at current rates. The states are presently adding to that death row population at a rate more than twenty times greater than the level of 1988 executions and ten times higher than the highest execution rate of the 1980s.

One further indication of the peculiar status of capital punishment in the United States is the large number of states with death penalty statutes that have not yet carried out any executions. In 1988, twelve years after executions resumed in the United States, thirty-seven of the fifty states had death penalty statutes, yet only thirteen of these jurisdictions have actually carried out executions of persons sentenced to die. This Article offers statistical evidence that the failure to execute persons sentenced to death during the 1980s was not simply the result of the intervention of the federal courts, but reflected conflict and uncertainty about capital punishment in the states themselves. That such a conflict exists is evident from the fact that several states with penal codes which include death penalty provisions do not execute condemned persons. As of December 1989 there were twenty-four such states.

There is reason to doubt that the death penalty/no execution status is solely transitional and without significance. Many nonexecuting states have large death row populations and prisoners who have been under sentence of death for substantial periods. Texas has conducted thirty-one executions during the 1980s while California, Pennsylvania, Ohio, and Illinois had none. In addition, according to Figure Two, six of the ten largest death row states did not execute during the 1980s, including three of the top five death row jurisdictions.

Further, the rate at which states have moved from nonexecuting to executing status declined in the mid-1980s, as is shown in Table One. While the pace of executions has fluctuated from eleven to twenty-five per year during the mid- and late-1980s, the number of states contributing to the total has rarely changed. As Table One indicates, only one of twenty-five states with a death penalty statute but no executions as of June 1985 executed during the following four years.

There are two rival accounts of the policy dynamic at work in these states which might explain nonexecution in states with death penalty statutes – external constraint and internal ambivalence. A constraint model would stress forces external to state political processes as the significant barrier to active execution policy. Under this model, the responsibility for the death penalty backlog in almost every state with condemned prisoners but no executions lies with the intervention of federal courts. This account of nonexecution would be bolstered either by discovering that those states that have executed are not fundamentally different from nonexecuting states with death penalty legislation or by finding that whatever patterned variation exists between executing and nonexecuting death penalty states is attributable to different patterns of external control.

The “internal ambivalence” model, on the other hand, argues that the forces which hinder a state from implementing its capital punishment policies are largely homegrown rather than externally imposed. According to this model, nonexecuting states with death penalty legislation fail to execute persons condemned to death because of internal political conflict that interacts with external restraint. A proponent of this view would expect to find a systematic difference in the political culture of executing and nonexecuting states, with the executing states displaying a stronger historic commitment to capital punishment.

This Article seeks to demonstrate that of the two theories, the internal ambivalence model is better supported by recently compiled statistical data describing trends among states in development of policies towards the use ofcapital punishment. In developing this thesis, this Article will first review the characteristics of executing and nonexecuting states. This is to be followed by an analysis of the execution patterns during the 1950s for thirteen states which later resumed executions in the 1980s. The analysis shows that those states which executed in the 1980s do not represent a random selection of states whose penal codes contain death penalty provisions. A corollary is that the residual sample of states which have death penalty statutes but do not execute condemned persons is also self-selected. It thus appears that the internal ambivalence model explains the development of the latter group of states.

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